Citation NR: 9633282
Decision Date: 11/26/96 Archive Date: 12/02/96
DOCKET NO. 94-27 316 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Wichita,
Kansas
THE ISSUES
Entitlement to service connection for a low back disability.
Entitlement to a disability evaluation in excess of 40
percent for hearing loss previous to September 8, 1993.
Entitlement to an increased evaluation for hearing loss with
vestibular dysfunction, currently rated 60 percent disabling.
Entitlement to a disability evaluation in excess of 30
percent for pulmonary histoplasmosis, right upper lobectomy,
previous to September 8, 1993.
Entitlement to an increased evaluation for pulmonary
histoplasmosis, right upper lobectomy, currently rated 60
percent disabling.
Entitlement to an increased evaluation for anxiety reaction,
currently rated 30 percent disabling.
Entitlement to special monthly compensation based on the need
for regular aid and attendance or by reason of being
housebound.
Entitlement to assistance in acquiring specially adapted
housing or a home adaptation grant.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARINGS ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Hilary L. Goodman, Counsel
REMAND
The veteran had active service from June 1949 to September
1949 and from April 1950 to March 1953.
This appeal arises from a June 1993 rating decision which
increased the disability evaluation for the veteran's hearing
loss from 30 percent to 40 percent, continued a 30 percent
disability evaluation for pulmonary histoplasmosis, right
upper lobectomy, and increased the disability evaluation for
the veteran's anxiety reaction from 10 percent to 30 percent.
This appeal also arises from a March 1994 rating decision
which denied service connection for a back disability and,
after enlarging the veteran's hearing loss disability to
include vestibular dysfunction, increased the disability
evaluation from 40 percent to 60 percent, effective September
8, 1993.
This appeal also arises from a September 1994 rating decision
which denied the veteran’s claim for special monthly
compensation based on the need for regular aid and attendance
or by reason of being housebound. In that rating decision
the disability evaluation for the veteran's pulmonary
histoplasmosis, right upper lobectomy, was increased from 30
percent to 60 percent, effective September 8, 1993. This
appeal additionally arises from a June 1995 rating decision
which denied the veteran's claim for assistance in acquiring
specially adapted housing or a home adaptation grant.
The veteran, who is seeking service connection for a low back
disability, has contended that he reinjured his back as a
direct result of repeated falls which were due to his
service-connected vestibular dysfunction. He has claimed
entitlement to special monthly compensation based on the need
for regular aid and attendance or by reason of being
housebound and entitlement to assistance in acquiring
specially adapted housing or a home adaptation grant, in
part, on the basis of the back disability.
The Court of Veterans Appeals, in Allen v. Brown, 7 Vet.App.
439 (1995), concluded that, "when aggravation of a veteran's
non-service-connected condition is proximately due to or the
result of a service-connected condition, such veteran shall
be compensated for the degree of disability (but only that
degree) over and above the degree of disability existing
prior to the aggravation."
The veteran is also seeking an increased evaluation for
anxiety reaction. Subsequent to the June 1993 rating
decision which increased the disability evaluation for the
veteran's anxiety reaction from 10 percent to 30 percent, the
Schedule for Rating Disabilities was amended, effective
November 7, 1996; the rating criteria for determining the
proper disability evaluation for mental disorders has been
substantially revised.
The veteran is also seeking an increased evaluation for
pulmonary histoplasmosis. Subsequent to the September 1994
rating decision which increased the disability evaluation for
the veteran's pulmonary histoplasmosis, right upper
lobectomy, from 30 percent to 60 percent, effective September
8, 1993, the Schedule for Rating Disabilities was amended,
effective October 7, 1996; the rating criteria for
determining the proper disability evaluation for respiratory
disorders has also been substantially revised.
In a November 1994 statement, Bruce E. Hodges, M.D., related
that he has been treating the veteran for many years and that
the veteran currently presents with a chronic disequilibrium
which has been long-standing; Dr. Hodges noted that the
veteran's neurological problem centers around a vestibular
lesion. Treatment records from Dr. Hodges are not currently
of record. The veteran, who is seeking increased evaluations
for hearing loss with vestibular dysfunction, has contended
that his hearing loss has become more severe and requests
that another examination be conducted.
After considering the current record, the issues are being
REMANDED to the originating agency for the following actions:
1. The originating agency should request
copies of the veteran's outpatient
treatment records dated subsequent to
September 1995 and copies of any of his
inpatient treatment records dated
subsequent to May 1995 from the VA
Medical Center, Kansas City, Missouri.
All documents obtained should be
associated with the veteran's claims
file.
2. After obtaining appropriate
authorization, the originating agency
should request copies of the veteran's
treatment records from Dr. Hodges. All
documents obtained should be associated
with the veteran's claims file.
3. After completion of the above, the
originating agency should refer the
veteran's claims file to a VA
neurologist. The neurologist is
requested to review the veteran's claims
file, including the service medical
records, the VA examination reports, VA
treatment records and private medical
records and statements. The veteran
should then be examined by this
neurologist. All indicated testing
should be conducted and all clinical
manifestations should be reported in
detail. Based on the examination and a
review of the record, the neurologist
should proffer an opinion, with
supporting analysis, as to the likelihood
that the veteran's low back disability
was caused or aggravated by his service-
connected vestibular dysfunction. The
degree of back disability which would not
be present but for the service-connected
vestibular dysfunction should be
identified. Reasons and bases for all
conclusions should be provided.
4. The veteran should also be scheduled
for a respiratory examination. The
express purpose of this examination is to
identify and evaluate the current
severity of the residuals of the
veteran's pulmonary histoplasmosis. All
necessary tests and studies should be
accomplished and all clinical
manifestations should be reported in
detail. The examiner should identify the
limitation of activity imposed by the
disabling condition, viewed in relation
to the medical history, considered from
the point of view of the veteran working
or seeking work, with a full description
of the effects of disability upon his
ordinary activity. The examiner is
requested to review the veteran's claims
file prior to the examination.
5. The veteran should also be scheduled
for an examination by an otologist. The
express purposes of this examination are
to evaluate the current severity of the
veteran's vestibular dysfunction and the
current severity of his hearing loss.
All necessary tests and studies,
including an audiological evaluation,
should be accomplished. The examiner
should identify the limitation of
activity imposed by the disabling
condition, viewed in relation to the
medical history, considered from the
point of view of the veteran working or
seeking work, with a full description of
the effects of disability upon his
ordinary activity. The otologist is
requested to review the veteran's claims
file prior to the examination.
6. The RO should schedule the veteran
for a special VA examination by a
psychiatrist to determine the nature and
extent of his anxiety reaction. The
veteran should be asked to provide
information concerning his recent social
and work experience. All necessary tests
and studies should be accomplished, and
all clinical manifestations should be
reported in detail. The examiner should
report a multi-axial diagnosis,
identifying all current psychiatric
disorders, and offer an opinion of the
extent to which the veteran’s service-
connected psychiatric disorder interferes
with his ability to establish and
maintain relationships as well as the
reduction in initiative, efficiency,
flexibility and reliability levels due to
his psychiatric disorder.
A complete rationale for any opinion
expressed must be provided. The examiner
should indicate the veteran’s overall
psychological, social, and occupational
functioning using the Global Assessment
of Functioning scale provided in the
Diagnostic and Statistical Manual of
Mental Disorders. The claims file,
including a copy of this REMAND, should
be made available to the examiner before
the examination, for proper review of the
medical history. The examination report
is to reflect whether such a review of
the claims file was made.
7. After completion of the above, the
originating agency should review the
veteran's claims for increased
evaluations for pulmonary histoplasmosis,
right upper lobectomy, by considering the
regulations pertaining to the rating of
respiratory disorders which became
effective October 7, 1996, his claim for
an increased evaluation for anxiety
reaction by considering the regulations
pertaining to the rating of mental
disorders which became effective November
7, 1996, and his claims for an increased
evaluation for hearing loss.
8. The veteran's claim for service
connection for a low back disability
should be readjudicated by considering
all the evidence of record as well as the
Allen case noted above. The should be
accomplished before the claims for
entitlement to special monthly
compensation based on the need for
regular aid and attendance or by reason
of being housebound and entitlement to
assistance in acquiring specially adapted
housing or a home adaptation grant are
reviewed.
9. If any determination made is
unfavorable to the veteran, a
supplemental statement of the case that
sets forth the evidence received since
the January 1996 supplemental statement
of the case should be provided to the
veteran and his representative.
After allowing the veteran and his representative the
appropriate period of time in which to respond to the
supplemental statement of the case, the veteran's case should
be returned to the Board for further appellate consideration,
if otherwise in order. The purpose of this REMAND is to
secure clarifying information and ensure due process. No
action is required on the part of the veteran until he
receives further notice.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1995).
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